Legal Beagle by Graeme Edgeler


Think it possible that you may be mistaken

I don’t like advertiser boycotts; especially not boycotts of advertisers for the content of the programmes during which their advertising appears, and especially not if that programme is news or current affairs.

Yes, free speech has consequences. But the exercise of free speech in response also has consequences.

There are several aspects to this. I do not think that advertisers should exercise control – even indirectly – over content. For advertisers, the programming is the medium, not the message; a programme is a conduit to the audience of a broadcaster, not something they should generally been seen as supporting. Especially when we are dealing with news or current affairs, those advertising during a particular programme should not be seen as endorsing the views expressed in it. And I think that if people generally treat advertisers as bearing responsibility for editorial content, they are more likely to either want some control over it, or to spend their advertising dollars in a way that has that effect.

We have ad-supported broadcasting. While there might be a place for a real public broadcaster, most of the radio and television we have will continue to be ad-supported. I like that there is a variety of things to watch and to listen to (most of which I don’t). But if we really start holding advertisers to account for the content of programmes or channels on which their ads appear, then they will be more circumspect about placing ads, and some voices may be lost.

That is not to say that those calling for boycotts should be stopped. Their speech is just as worthy of protection as the speech they seek to shut down. I simply ask that they consider not only the consequences of the speech they are protesting, but also the consequences of the speech they engage in.

I may agree that the speech targeted in one boycott is ill-considered, or harmful in some way, but next time a boycott succeeds it might have the effect of reducing speech I like, or think is valuable. Targeting Freeview over something Willie Jackson and John Tamihere have said, or Heritage Hotels for something Paul Henry said over which they had no control (and shouldn't have control) in order to punish their broadcasters for airing them, isn't fundamentally different from arranging a boycott of Four (or Mediaworks) for airing an episode of South Park about the abuse by Catholic clergy, or someone else for airing pro-homosexual propaganda like Queer Nation or The L Word.

I think liberal non-racists outraged about Paul Henry should be able to call for a boycott of him, and all of TVNZ, and the advertisers who support TVNZ. I think conservative Christians should be able to call for a boycott of The L Word, and the channel it appeared on, and every advertiser who supports that channel. But I think if they do, despite that being an exercise of free speech, it will be bad for free speech.

Threats of advertiser and consumer boycotts force companies to be more conservative, leaving out voices. Those voices may still be able to get through, but sometimes, they won’t. And sometimes that will suck.

Sure, it might not happen following any particular boycott or campaign: it’s a risk, not a certainty. But it is not a fanciful risk.

We have had quite a number of successful (and partly successful) protests against speech some consider offensive over recent years. Paul Henry went from Breakfast, and Willie and JT have gone (for now, at least) from Radio Live. Of course, it’s not just radio and television broadcasts that are affected by angry consumers; after a campaign against Ian Wishart’s book Breaking Silence: The Kahui Case, which told Macsyna King’s story, a number of major book sellers, including Paper Plus, The Warehouse and Mighty Ape, announced they would not be selling it. TradeMe apparently banned its resale. Whitcoulls, to its eternal credit, announced that they preferred to read the book before denouncing it, and continues to sell it to this day, while the Booksellers’ Association put out a wonderful statement reminding everyone that no-one was trying to compel anyone to read it, and reinforcing the dangers of banning books because some don’t like them.

Other books too feel the wrath of an angry public. Earlier this year, a similar (if smaller) campaign against Ted Dawe’s award-winning young adult novel Into the River, saw it removed from some bookstores, and others put up warnings.

Of these recent examples, Paul Henry is an outlier, as he was just trying to be funny. But with Willie and JT, Breaking Silence and Into the River, we do not have people being shocking for no real reason. Rather, we have people who have said things that they consider important, others who agree that there is a need for their speech to be heard, and others who, equally honestly, consider it just as important that their ideas are silenced as much as possible.

The speech recently being denounced as “victim blaming” does not come from people who think they are victim blaming. Much of the advice they give they see as information that would help stop some women and girls from becoming victims of rape or sexual assault. Their opponents view their speech not only unhelpful in this regard, but dangerous, instead having the effect of reinforcing the views of some that there are people who are asking to be sexually assaulted, and discouraging the type of support that would make it easier for victims to seek help. And there are others who honestly believe that that message is dangerous, because they see it as falsely telling women and girls that there is no action that they can take to make themselves safer, which they view as increasing the likelihood that some people will be raped. They cannot all be right, but those who are wrong are misguided, not mal-intentioned. They have vastly contrasting views, but for the most part, they honestly believing that the expression of their views has a chance of decreasing the incidence of rape, while that of those they oppose, will tend to increase the numbers of victims.

This duality is often the case in calls for the silencing of certain viewpoints. With Ted Dawe’s Into the River, the debate is between those who fear the book will encourage young people to follow in the hero’s footsteps or expose them to material they will not be able to process, and those who think it will instead help. Author Bernard Beckett (who was one of the judges of the New Zealand Post Children’s Book Awards at which Into the River did so well) responded eloquently:

Finally, although you may not agree with my judgement, ours must not be portrayed as a disagreement between the moral and the apathetic. Those of us who believe in literature like this are as driven to make a better world for our children as those who oppose it. Nor is this even a disagreement about what stands as moral, for I too seek a place where the young may move with safety and joy, live in respect and tolerance, and form healthy, nourishing relationships. To the extent we do disagree, it is about the way this book will be read, and more broadly, the way that reading will influence world view and behaviour. These are difficult questions, to be approached with a cautious and open mind, and crucially, with careful study and evidence to support one’s case. Do that, and there is a chance we can move together towards the sort of world we all desire. Turn this into a tribal war, between the putatively decent and depraved, and everybody suffers.

The point Bernard makes about the potential for everyone to suffer when it is people – rather than ideas – that are attacked is an important one. Even adopting the perspective of someone who considers certain speech dangerous, there is still the risk that seeking to silence an opposing view will do more harm than good, and not just because of a potential “next” boycott.

Supporters of the boycott of Radio Live and its advertisers were hoping to silence the speech of those they see as placing blame on victims of rape – a view that they consider has the effect of emboldening those who victimise women, and which they believe discourages rape victims from seeking help, and attaining justice. They consider the view that victims of sexual assault could have chosen to wear different clothes to lessen their chance of being victimised as dangerous speech.

Of course, those views are still out there. The diminished reach of Willie and JT personally does not diminish the extent to which the views to which they gave voice are held within the wider community. So removing Willie and JT’s audience from them isn't going to attack their real concern – the prevalence of these views within the broader community.

How do we solve this? Well, it’s partly generational; as the more conservative older generation dies, some of the views they hold die with them. If you grew up in a society where these views weren't just accepted, but encouraged, and perhaps no one spoke against them for a very long time, it is probably naïve to expect wholesale change.

But for someone who views this speech as dangerous, a generational change isn't fast enough, so they need to change some minds. Some people will be incorrigible. Others just haven’t heard that single argument that will convert them. Most will be somewhere between.

But the numbers who will accept the error of their ways because Willie and JT are no longer on Radio Live between noon and 3:00 pm on weekdays are vanishingly small. You are going to need to persuade people, and accusing them of “victim blaming” or being “rape apologists” isn't going to do it. But you know there are some reasonable people out there, whose minds can be changed, and society changed along with them.

What if – after listening to the original interview, and to the apology – you decided that the hosts were a lost cause, but you didn't think their audience was, and certainly didn't think everyone in their audience was, and you formed the view that there was a chance you might successfully expose some of them to alternative views: to get at least some of them to think about the damage that can happen when a victim’s choices are scrutinised, and a perpetrators are minimised.

Willie and JT’s audience has heard an interview full of crass behaviour that you consider damaging, but few of them are reading twitter, or blogs. And they’re not going to look for an alternative view themselves.

In reaching these people, the campaign against Radio Live, against their advertisers, and against Willie and JT, did not help.

The continued campaign against Willie and JT did not to stop them blaming victims of rape. In fact, they’d already stopped. In the days after the interview with Amy was posted on-line, and the apology that followed, but before Willie and JT were placed on leave, it was completely off the agenda. But it wasn't only “victim blaming” that was banned at Radio Live. After Matthew Hooton’s (dis)appearance, Radio Live didn't simply ban their show from airing content critical of victims of sexual assault, but all discussion of the Roast Busters, and of rape culture. Discussion of Willie and JT and their behaviour was off the agenda as well. Because that is what happens when, even for a broadcaster that somewhat courts controversy, something becomes simply too controversial; however great the public interest in these issues was, it wasn't worth the risk of further brand damage, and they were going to play it safe.

Where does a progressive, or feminist view of rape culture have an audience in the commercial media the size Willie and JT had on Radio Live? Well, Amy had that audience for ~10 glorious minutes, where she gave better than she got. But anyone who wanted to support her to that same audience a few days later couldn't. Not because the producers of Willie and JT’s show don’t want to give voice to people who disagree with Willie or JT, but because Radio Live had been cowed into silence.

I’m confident there were many of them. I saw enough comments of people who couldn't get through, or who were cut off from the talk back audience when they started discussing Willie and JT’s interview, or attitudes toward victims of sexual assault, to imagine that Radio Live’s regular afternoon audience were missing out on hearing a lot of perspectives they don’t usually hear. These were people trying to take their stories, and the stories of friends and loved ones affected by rape culture to an audience that doesn't often hear their voices, to an audience in the one of the places where these seldom-heard views might do the most good.

But they, too, were silenced, because Radio Live banned not just the speech their critics consider wrong, but also banned speech they would consider helpful. How many minds could have been changed if the response to Willie and JT was not to contact their advertisers, but to contact their switchboards, and flood the airwaves with the views of those appalled at their treatment of Amy? We’ll never know, but I’m guessing it would have been more than were changed by their silencing.

There isn't going to be less speech because Willie and JT are off the air – someone will fill the airtime – but it is at least possible (if not likely), that the speech that remains will be more homogeneous. And if that isn't the case once Radio Live’s early afternoon slot is filled, then the next ‘success’ or the one after that may. It certainly seems exceedingly unlikely that any boycott of this case will have the effect of increasing the range of voices on our airwaves.

The campaign to get Willie and JT off the air, and advertisers boycotts, and boycotts more generally, like the public pressure that led to major booksellers not stocking Breaking Silence, and others to cease selling Into the River, fall into a group of expression that that is aimed not at counteracting the ideas expressed by an individual, but at seeking to limit their opportunity or desire to speak in the future. And this, beyond my concern about greater advertiser influence over our airwaves, and more conservative broadcasters generally, is what I find most concerning.

As a matter of principle, I do not see that placing pressure on advertisers to, in effect, rein in an errant broadcaster is fundamentally different from other pressure placed on an individual to simply not speak. Both are exercises of freedom of expression, and both are aimed at people, not ideas.

Many women in public life – whether politicians, or business or union leaders, or public spokespeople for important (or not so important) causes – face heightened scrutiny. Photo-shopping the head of a female politician onto the body of adult film star is an exercise of free speech, as is publicly commenting upon which people you consider are ugly, and who you would like to “do”. But it is speech that risks discouraging other ideas from being expressed. Unless you are lucky(?), one photo probably won’t have that effect, but the repeated hostility toward women in public view undoubtedly discourages other women from standing for office, or speaking out.

Now, some people engaging in such speech will consider that a particular female politician is dangerous, and is pursuing policies detrimental to society at large. They may be saying things they find offensive, and it is possible that by reacting to that speech in a way calculated (or potentially having the effect) of discouraging them from speaking will cause their ideas to spread less widely. In the same way that a boycott removing Willie and JT will stop them spreading their ideas widely, derogatory remarks about someone like Sarah Palin, or Pauline Hanson, or Helen Clark, may affect their ability to disperse their ideas – they may be taken less seriously, and others may be more reluctant to come forward at all.

Consumer boycotts such as those I've discussed above, and misogynistic comments about female public figures have the same ultimate aim: to silence people, or to ensure that the audience for their expression is as small as possible. There are other examples: like loud protests designed to drown out the voice of a controversial speaker invited to a university campus, or the outing of an anonymous author of a blog. And it would be great if they happened far less as well.

Of course, they are themselves an exercise of freedom of speech, even if it is speech that detracts from the marketplace of ideas. I am not proposing that advertiser boycotts should be prohibited. Nor do I think advertisers should be forced to support programming that they do not want to. Nor that bookstores should be forces to stock particular books. And banning personal criticism of politicians, whatever their stripe, and however distasteful, isn't a goer for me either.

But I would like those who engage in this sort of speech to take more care.

If you were considering boycotting Whitcoulls over its decision to stock “Breaking Silence”, it would be great if you could weigh into your decision the effect it might have on overall free speech, and the possibility you may in the future not be able to readily buy books they might want (or even that fewer people will read books you think should be read widely if they aren't readily available).

I would welcome your considering the extent to which you are actually harmed by a decision by Whitcoulls to stock the book, and weigh that against the potential harm you, others and free speech overall could face, when reaching a decision over whether to enter into a boycott. In some cases you may consider the harm so great, and the risks low enough that a boycott is justified, but other times you will not. It is likely I will disagree with you most of them time, but I cannot expect my views to hold sway in a democratic society.

In the case of a broadcaster, or a bookstore, as well as there being other broadcasters you agree with, or books that you like which may face a boycott (if one succeeds, it seems likely that more will try), there is also the concern is that some bookstores may simply become more conservative out of fear of bad publicity. It is probably less likely to happen in New Zealand than elsewhere, but it was not all that long ago that books about any number of progressive issues would have been highly controversial.

In the United States, some major movie theatre chains just won’t air films which receive an R rating from the MPAA (and some department stores won’t stock the DVDs). In some cases (“The King’s Speech” is a good example) film-makers release PG-13 edits of their films for the American market. Sometimes they do not. It’s not that the theatres would have faced a boycott if they’d aired the R-rated version of “The King’s Speech”, they probably wouldn't. But it didn't even get that far.

These boycotts follow from consumer action, but have the effect of basically stopping some people (e.g. in towns where the only cinema or cinemas are part of those chains) from seeing certain films. Of course, if they really want to, they can get the film out on DVD or whatever, but people who think “we should see a movie.” “What’s on?” “The King’s Speech.” “I heard that was good” will just miss out.

Should movie theatres be forced to show R-rated films they really don’t want to show? Of course not. But wouldn't it be better if the fear of consumer protests didn't cause them to make a blanket decision without consideration for the merits of a particular film?

Please don’t protest in a way designed to diminish the free speech of others, or at least be very careful before you do; as one day you may wish to rely on that free speech. Consider the golden rule: would I support these actions, if someone was doing them to me? Or am I wanting to silence someone simply because I do not like what they want to say?

If we move to ban speech because of the harm some people consider it poses, ask yourself, whose perception of harm will we use? Some people really think that telling women and girls that their choices cannot decrease their chances of being raped is dangerous. What if they convince enough people that your ideas are harmful?

In words of Oliver Cromwell’s that I discovered through Jacob Bronowski: think it possible that you may be mistaken. And if that is a step too far, consider that the actions you take may actually harm your cause. Or you may find your campaign not only silences those who have said something you vehemently disagree with, but also those who are fighting your cause – like those who wanted engage Willie and JT’s audience over the effects of rape culture, and couldn't, because of the pressure Radio Live was put under.

And if I am loudly saying things you disagree with, ask yourself whether it would be better if you silenced me, or if you changed my mind.

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